State seeks ownership of Yadkin riverbeds through lawsuit

The Yadkin River is seen flowing south through the High Rock Lake Dam with Bringle Ferry Road in the background. The N.C. Department of Administration has filed a lawsuit for confirmation that the State of North Carolina owns the navigable riverbeds of the Yadkin, instead of Alcoa Power Generating, which has been operating the river's dams for nearly 100 years.

Published: Friday, August 2, 2013 at 11:52 a.m.

Last Modified: Friday, August 2, 2013 at 5:07 p.m.

North Carolina officials want a judge to confirm that the state — not Alcoa Power Generating Inc. — has a right to the navigable waterways of High Rock Lake and other areas of the Yadkin River Project.

The N.C. Department of Administration filed a lawsuit against Alcoa on Friday over who will control the water and electric power that stems from the project and its dams, which stretch from southern Davidson County southward to Albemarle. The lawsuit, filed in Wake County Superior Court, alleges that Alcoa has been operating dams on property the state never gave up.

Kevin Anton, Alcoa's chief sustainability officer, said ownership of submerged lands is a question of federal law, and he said Alcoa will work to move the issue to federal court.

“APGI is confident in its ownership position and that it will be firmly established in court,” Anton said in a statement. “Despite making ourselves available to the governor, we are disappointed that we didn't have the opportunity to discuss this more fully with him before filing this suit.”

The fight between the state and Alcoa has continued since 2008, when the corporation started its quest for a new 50-year license to operate the project. That application is on hold, pending Alcoa receiving a water quality certificate from the state. It initially received the certificate in May 2009, but it was later revoked in 2010, after the Division of Water Resources said the company submitted inaccurate data.

The state announced Friday it denied Alcoa's second attempt at the water quality certificate it submitted last year because of the “ownership dispute.”

Alcoa said it owns the land in the project and because the state is challenging that fact, the corporation's application can't be ruled valid, Tom Reeder, director of the Division of Water Resources, said in a letter to Alcoa officials Friday.

Alcoa Relicensing Manager Ray Barham said the facts are clear and data clearly demonstrates that Alcoa should receive a 401 water quality certificate.

“We have a proven plan in place to meet N.C.'s water quality standards, and we stand ready to invest approximately $80 million to improve water quality in the Yadkin River,” Barham said. “The state's action has put that investment on hold.

“We have expressed our interest in working together with the State of North Carolina for the betterment of the region, but it doesn't appear that Gov. (Pat) McCrory shares that goal. Nonetheless, we will continue our efforts to redevelop the Badin Business Park and bring new jobs to North Carolina. At the same time, we will challenge the state's actions in court and move forward with our efforts to obtain a new license for the Yadkin Project.”

Ownership of riverbeds beneath commercially navigable waterways has historically gone to state governments upon statehood. Non-navigable riverbed ownership stays with the federal government.

In the lawsuit, the state claimed it allowed Alcoa to build four hydroelectric dams in the early 20th century, under the expectation the corporation would create high-quality jobs for citizens along the Yadkin.

Alcoa's dams along the Yadkin River once powered an aluminum smelter that employed nearly 1,000 people, but that plant closed in 2010. The corporation now sells the energy.

“We filed suit today on behalf of the people of North Carolina who aren't receiving a fair deal,” Secretary of Administration Bill Daughtridge said in a statement. “The people never gave away their ownership interest in the Yadkin River. It's their river, and it should be used for their benefit.”

State and Alcoa officials had the same conversation over riverbed ownership in Davidson County not too long ago.

At a regular meeting of the Uwharrie Regional Resources Commission in October 2012, Sen. Fletcher Hartsell, R-Cabarrus, presented the same arguments the state used in its lawsuit.

“Originally, rivers were the instruments of commerce in this state,” Hartsell said. “That being the case, the state owned the beds of the rivers and navigable areas of the rivers. When the state of North Carolina declared its independence, it became a state.

“The state owns the beds of the rivers and the waters entrusted to the public as a whole. What is the public benefit related to a private operation that benefits from the waters for private gain?”

At another meeting of the URRC in February, a representative of the state's Program Evaluation Division delivered a report that said North Carolina fails to track its submerged lands or actively manage them.

The report said state law prohibits the state from giving or selling anyone else title to submerged lands without the legislature's explicit approval. However, the state may have conveyed riverbeds in the past and lost track, the report found.

“I applaud the state's effort for defending the public's ownership over our public trust resources,” Yadkin Riverkeeper Dean Naujoks said. “They have a duty under the constitution to defend public resources, like the water of the Yadkin River.”

Nash Dunn can be reached at 249-3981, ext. 227, or at nash.dunn@the-dispatch.com. Follow Nash on Twitter: @LexDispatchNash. The Associated Press contributed to this article.

<p>North Carolina officials want a judge to confirm that the state — not Alcoa Power Generating Inc. — has a right to the navigable waterways of High Rock Lake and other areas of the Yadkin River Project.</p><p>The N.C. Department of Administration filed a lawsuit against Alcoa on Friday over who will control the water and electric power that stems from the project and its dams, which stretch from southern Davidson County southward to Albemarle. The lawsuit, filed in Wake County Superior Court, alleges that Alcoa has been operating dams on property the state never gave up.</p><p>Kevin Anton, Alcoa's chief sustainability officer, said ownership of submerged lands is a question of federal law, and he said Alcoa will work to move the issue to federal court.</p><p>“APGI is confident in its ownership position and that it will be firmly established in court,” Anton said in a statement. “Despite making ourselves available to the governor, we are disappointed that we didn't have the opportunity to discuss this more fully with him before filing this suit.”</p><p>The fight between the state and Alcoa has continued since 2008, when the corporation started its quest for a new 50-year license to operate the project. That application is on hold, pending Alcoa receiving a water quality certificate from the state. It initially received the certificate in May 2009, but it was later revoked in 2010, after the Division of Water Resources said the company submitted inaccurate data.</p><p>The state announced Friday it denied Alcoa's second attempt at the water quality certificate it submitted last year because of the “ownership dispute.” </p><p>Alcoa said it owns the land in the project and because the state is challenging that fact, the corporation's application can't be ruled valid, Tom Reeder, director of the Division of Water Resources, said in a letter to Alcoa officials Friday.</p><p>Alcoa Relicensing Manager Ray Barham said the facts are clear and data clearly demonstrates that Alcoa should receive a 401 water quality certificate. </p><p>“We have a proven plan in place to meet N.C.'s water quality standards, and we stand ready to invest approximately $80 million to improve water quality in the Yadkin River,” Barham said. “The state's action has put that investment on hold.</p><p>“We have expressed our interest in working together with the State of North Carolina for the betterment of the region, but it doesn't appear that Gov. (Pat) McCrory shares that goal. Nonetheless, we will continue our efforts to redevelop the Badin Business Park and bring new jobs to North Carolina. At the same time, we will challenge the state's actions in court and move forward with our efforts to obtain a new license for the Yadkin Project.”</p><p>Ownership of riverbeds beneath commercially navigable waterways has historically gone to state governments upon statehood. Non-navigable riverbed ownership stays with the federal government.</p><p>In the lawsuit, the state claimed it allowed Alcoa to build four hydroelectric dams in the early 20th century, under the expectation the corporation would create high-quality jobs for citizens along the Yadkin.</p><p>Alcoa's dams along the Yadkin River once powered an aluminum smelter that employed nearly 1,000 people, but that plant closed in 2010. The corporation now sells the energy.</p><p>“We filed suit today on behalf of the people of North Carolina who aren't receiving a fair deal,” Secretary of Administration Bill Daughtridge said in a statement. “The people never gave away their ownership interest in the Yadkin River. It's their river, and it should be used for their benefit.”</p><p>State and Alcoa officials had the same conversation over riverbed ownership in Davidson County not too long ago.</p><p>At a regular meeting of the Uwharrie Regional Resources Commission in October 2012, Sen. Fletcher Hartsell, R-Cabarrus, presented the same arguments the state used in its lawsuit.</p><p>“Originally, rivers were the instruments of commerce in this state,” Hartsell said. “That being the case, the state owned the beds of the rivers and navigable areas of the rivers. When the state of North Carolina declared its independence, it became a state.</p><p>“The state owns the beds of the rivers and the waters entrusted to the public as a whole. What is the public benefit related to a private operation that benefits from the waters for private gain?”</p><p>At another meeting of the URRC in February, a representative of the state's Program Evaluation Division delivered a report that said North Carolina fails to track its submerged lands or actively manage them.</p><p>The report said state law prohibits the state from giving or selling anyone else title to submerged lands without the legislature's explicit approval. However, the state may have conveyed riverbeds in the past and lost track, the report found.</p><p>“I applaud the state's effort for defending the public's ownership over our public trust resources,” Yadkin Riverkeeper Dean Naujoks said. “They have a duty under the constitution to defend public resources, like the water of the Yadkin River.”</p><p>Nash Dunn can be reached at 249-3981, ext. 227, or at nash.dunn@the-dispatch.com. Follow Nash on Twitter: @LexDispatchNash. The Associated Press contributed to this article.</p>